Hopefully you have never experienced the sinking feeling that comes with discovering your creative work has been knocked off and is being sold online. I have had it happen to me. It is really disappointing, infuriating even, and the first thing you usually want to do is get those copies removed immediately. (Well, you probably want to say a few choice words to the copier and then get the items removed, right?) The Digital Millennium Copyright Act (“DMCA”) provides a framework for getting internet service providers and other websites to easily and quickly remove content that infringes on copyrighted work. So, let's read on to figure out what to do if you discover your work is being copied online.
Is Your Work Protected by Copyright Laws?
If you have discovered that you have a copycat online, the very first thing you want to consider is whether your work is actually protected by copyright laws. You may have learned that copyright is automatic once you have completed a tangible creative work and you do not have to take any additional steps to obtain copyright protection. While this is correct, it is only true for works eligible for copyright in the first place. In other words, not everything someone makes is copyright eligible even if it requires hard work and skill. The piece must contain a sufficient amount of creative and original material.
Take this piece. It is an ambigram of the word "zoe" and was initially submitted for copyright registration in 2019. Including two requests for reconsideration, the copyright office denied the claim a total of three times. Although I personally think the ambigram is pretty cool and clearly took some talent to create, the copyright examiners thought it lacked creativity and originality. They reasoned that typeface is generally ineligible for copyright protection. Even if they considered it to be something other than a typeface; if ambigrams were accepted as an artform, the elements of the design have to be numerous enough and arranged in an original way. The copyright office determined that three overlapping letters in a single color was just not creative enough to be protected by copyright laws.
So, imagine if you created this design or something similar. You spent time. energy and creativity coming up with and expressing the design. You have some success selling, for instance, personalized t-shirts in this style and then discover someone has copied all of your work and is selling it on their website. It is quite understandable that you would want to try and get the copied items taken down and the copier punished in some way but, when dealing with a design that is ineligible for intellectual property protection, there is little you can do to keep people from copying. Certainly, the DMCA offers no protection in this case and it would be improper to submit a takedown notice for a design like this.
A lot of makers and creators feel it is morally wrong to copy someone else's work but subjective morality generally has little to do with whether a work is illegally copied. Is your work original, creative and fixed in a tangible medium? Is your work something that cannot be copyrighted? These are both critical questions under the circumstances. Initiating a takedown under the DMCA is a legal process so, if you find yourself in a situation where your work has been copied, its a good idea to put your feelings aside (to the extent possible!) and make sure you first confirm that your work is covered by copyright before proceeding.
Has Your Item Been Illegally Copied?
Even if your work is definitely covered by copyright, there still must be actionable copying before you can legally file a takedown under the DMCA. It is sort of counterintuitive but, not all copying is illegal. There has to be a good faith effort to determine 1) whether copying actually happened (some things seem similar but one is not actually copied from the other) and 2) whether the copying was illegal (is there substantial similarity? Do any defenses such as fair use apply?)
This may sound a tad complicated but courts considering things like this have determined that if you have a subjective good faith belief that an item is infringing and certain defenses do not apply then that is enough to go forward with the DMCA takedown. [1] Check out this post for more information on determining whether the copying you are seeing is illegal.
Filing Your Takedown Notice
So, once you have determined that your work is covered by copyright and has been illegally copied you then need to figure out who (or what entity) to contact about getting the infringing item removed. Takedown notices generally need to be sent either to the service provider or the website host. Sites like Etsy, Amazon and eBay are considered "service providers" under the DMCA as they provide a place for third parties to post their own content. [2] You can send DMCA takedowns directly to these companies if you find that your work has been infringed on their sites.
But, what about websites like this one? It is not obvious who is hosting the site like it would be on Etsy or Youtube. If you are not sure what entity is hosting a site you can always go to www.whoishostingthis.com, enter the website name in the search box and it will tell you the host of a website. For instance, if you go to that site and enter copyrightforcrafters.com into the search box it will tell you that this site is hosted by wix.com. At that point, similar to sites like Etsy and ebay, if you can google the site name plus "report copyright infringement" you can usually find the page where copyright reports can be made.
To report infringement, the vast majority of sites provide a form that can be filled out and submitted online. It is best to use the form provided as it ensures you include all the relevant information in the format the host prefers. But, if there is no form provided, a letter sent to the designated agent or legal department will suffice but it must include all of the required information. The DMCA itself tells us what information needs to be included in the takedown notice. These requirements need not be in any particular order but they must all be present in the notification:
The owner of the copyright, or the person authorized to act on their behalf, such as their attorney, must sign the notification either physically or electronically;
The work being infringed upon must be sufficiently identified;
The alleged infringing material that should be removed or disabled must be sufficiently identified or enough information given so that the service provider may locate the material;
The copyright owner’s, or their authorized agent’s, contact information which should include address, telephone number and/or e-mail address;
A statement that the person submitting the notification has a good faith belief that the infringing material is not authorized by the copyright owner, their agent or the law;
A statement that the notification being submitted is accurate; and
A statement, under penalty of perjury, that the person submitting the notification is authorized to do so;
Additionally, the notification must be in writing and must be sent to the agent designated by the service provider. [3]
What Will Happen After You Submit the Takedown?
After a notice of copyright infringement is submitted under the DMCA, a service provider must "expeditiously" remove or disable the infringing material. [4] This usually means the copied work will be taken down within 24-72 hours. Service providers are able to act so quickly because they generally do not play judge or jury. In other words, no one is analyzing the legal sufficiency of the takedown notice. No one is comparing the two works and making a decision that one is indeed infringing. Not only would this be time consuming and costly, it is not the place of a service provider or website host to come to these sorts of legal conclusions. Plus, in order to maintain their "safe harbor" or immunity from legal liability, the DMCA requires that the listings simply be removed quickly after a takedown is submitted.
Take Note
There are a couple of things you should be mindful of when submitting a takedown notice. First, the person you are accusing of infringement will be given all of your contact information. Generally, whatever you put in the takedown itself will given to the other party. I mention this because I have had experience with people who are very surprised and feel like the service provider has violated their privacy when they learn the other party was given their information. However, that is just how the process works. Because a takedown is considered a legal document and you are essentially accusing someone of violating the law, you cannot remain anonymous.
Additionally, be aware that the person you have accused of infringement has the right and opportunity to file a counter-notice, which is essentially a denial of your infringement claim. If they do not believe they have violated your copyright you may receive a counter-notice and, at that point, you have to decide whether you want to pursue the claim in a court of law. If you do not, the copied work will be put back up for sale. If you do want to file legal action it is important that your item is formally registered with the copyright administration. You cannot file a copyright lawsuit without first obtaining a copyright registration. Because registration usually takes weeks, if not months, you may want to consider registering any copyrights as soon as you are able to do so as this gives you the most options if you run into infringement issues down the line.
[1] Lenz v. Universal Music Corp., 801 F.3d 1126, 1135 (9th Cir. 2015).
[2] 17 USC § 512(k)(1).
[3] 17 U.S.C. § 512(c)(3)(A).
[4] 17 U.S.C. § 512(c)(1)(C).
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